Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1998.
South Africa's governing institutions and society continued to consolidate the democratic transformation initiated by the historic 1994 elections. The Government comprises ministers from the African National Congress and the Inkatha Freedom Party (IFP). With the June 1996 withdrawal of the National Party (NP) from the Government of National Unity, the Parliament took on a more central role in national debate. In addition to the 3 major parties, the 400-member National Assembly includes the Democratic Party (DP), the Freedom Front (FF), the Pan Africanist Congress (PAC), and the African Christian Democratic Party (ACDP). The new Constitution came into effect in February. The judiciary, including the Constitutional Court, is independent.
The South African Police Service (SAPS) has primary responsibility for internal security, although the Government continues to call on the South African National Defense Force (SANDF) to provide support for the SAPS in internal security situations. The SAPS continued its major restructuring and transformation from a primarily public order security force largely dedicated to enforcing apartheid laws, to a more accountable, community service oriented police force. The SANDF and the newly created SAPS border control and policing unit share responsibility for external security. The civilian authorities maintain effective control of the security forces. However, some members of these forces committed human rights abuses.
South Africa has a diversified and productive economy whose mainstays are manufacturing, mining, and agriculture (augmented by service support industries), which make up 24 percent, 8 percent, and 5 percent, respectively, of the country's GDP of $126.3 billion (543 billion Rand). Ownership of wealth remains highly skewed. Officially, unemployment is just under 30 percent, although large numbers of people, particularly blacks, are employed informally in retail or small-scale manufacturing operations. The economy is driven largely by market forces, although a few key industries remain tightly controlled, including power generation, petroleum, and mining. The Government's "Growth, Employment and Redistribution" macroeconomic program provides a framework for economic restructuring to achieve enhanced growth. The numerous social and economic problems that developed largely during the apartheid era are expected to persist for many years.
The Government generally respected the human rights of its citizens, and the laws and newly independent judiciary provided an effective means of dealing with instances of individual abuses. However, problems remain in several areas. Some members of the security forces committed human rights abuses, including torture, excessive use of force during arrest, and other physical abuse. Deaths in police custody and as a result of excessive force remained problems. The Government has taken action to investigate and punish some of those involved. In April the Government established an Independent Complaints Directorate to investigate deaths in police custody and deaths as a result of police action. Prisons are seriously overcrowded. The judiciary is overburdened, and lengthy delays in trials are a problem. Discrimination against women and the disabled continued. Violence against women and children remained a serious problem. There were hundreds of political and extrajudicial killings, and political violence remained at about the same level as in the previous year, both in KwaZulu/Natal and countrywide. Vigilante action and mob justice remained a problem.
The Truth and Reconciliation Commission (TRC), created to investigate apartheid-era human rights abuses, make recommendations for reparations for victims, and grant amnesty for full disclosure of politically motivated crimes, completed its human rights hearings by the end of the year and increased its focus on adjudicating the more than 7,000 amnesty applications received by the Commission. Steps were taken to extend both the period covered by the amnesty and the amnesty application deadline. Parliament continued to revise or repeal discriminatory legislation and to bring other laws into line with the new Constitution. For example, laws which establish racial equality in the provision of child-maintenance grants, provide security against eviction for long-time occupants of rural land, and officially repeal the death penalty were passed during the year.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
Police use of excessive force during apprehensions resulted in numerous deaths, and deaths in police custody remain a problem. In April the Government established an Independent Complaints Directorate (ICD) to investigate deaths in police custody and deaths as a result of police action. In November the ICD reported 441 deaths as a result of police action. Of these deaths, 428 occurred while in police custody, and 13 occurred as a result of police action. These figures represented a dramatic increase over the estimated 1996 number of deaths in police custody (32 for the year). The increase may be due to new statutory requirements for the SAPS to report all such cases to the ICD. The ICD's report lists the subcategories under deaths in police custody to include natural causes, suicide, injuries in custody, injuries prior to custody, and possible negligence. The vast majority of deaths that occurred as a result of police action involved shootings by the police during the course of arrest.
The two nongovernmental organizations (NGO's) that follow political and extrajudicial deaths in South Africa showed different trends in their figures for 1997. The Human Rights Committee (HRC) reported that political violence resulted in 1,228 deaths from January to November. The South Africa Institute for Race Relations (SAIRR) reported 425 politically motivated killings during the first 11 months of 1997, compared with 683 for the same period in 1996.
The peace process continued in KwaZulu-Natal. A special provincial bilateral IFP-ANC Peace Committee met regularly, seeking a settlement that would end political violence. The IFP and the ANC, as the parties with the largest numbers in the provincial Parliament, had the majority of the members on the Portfolio Committee on Safety and Security that intervened regularly at scenes of potential conflict to facilitate peaceful solutions.
Political killings in KwaZulu-Natal remained a major problem and were persistent in certain areas. For example: on July 22, five ANC activists, including two who had been elected to the city council less than 24 hours before, were killed in a late night raid on their dwelling near the town of Richmond. On January 3, four people were killed in a massacre in the southern part of the province and an IFP leader who was a key figure in the Midlands peace process was killed. Shootings and killings continued sporadically through the year near Inchanga, halfway between Durban and Pietermaritzburg. The build-up of a large police and military presence in the region had a stabilizing effect, resulting in a quiet end to a very violent 1997. Charges against the six accused murderers of Zulu princess Nonhlanhla were withdrawn by the provincial attorney general after three witnesses were killed. The attorney general cited lack of evidence as the reason for the release of the accused.
Police apprehended two suspects in connection with three January bombings near the northwest province town of Rustenberg. The bombs, which wounded two individuals, struck a mosque, a post office and a general store. Their cases have not yet been tried.
Vigilante action and mob justice remained problems.. People Against Gangsterism and Drugs (PAGAD), a self-proclaimed Islamic-oriented community-based organization calling for stronger action by the Government and police against crime and drugs, continued to engage in acts of intimidation and violence against suspected drug dealers and gang leaders. Vigilante violence pitting supporters of PAGAD against drug-dealing gangsters in Cape Town continued in 1997. PAGAD's earlier tactics of mob justice and mass marches gave way to almost weekly drive-by shootings and gasoline-bomb attacks on homes of suspected drug dealers. PAGAD supporters were also the victims of alleged gangster reprisal. Approximately 17 people were reported killed and 60 were reported wounded in more than 159 PAGAD-gang clashes during the year, including 13 pipe bomb attacks in the month of November alone. Some of these incidents, however, were likely intergang, or PAGAD factional violence. Police made only limited progress in bringing the perpetrators of this violence to justice. In October three men were charged with eight offenses, including murder, for the Worcester bombings. All were sentenced to 4 life terms plus 88 years.
There were occasional reports of killings linked to the continued practice of witchcraft in some rural areas. In the Northern province, where traditional beliefs regarding witchcraft remain strong, officials reported dozens of killings of people suspected of witchcraft. The Government has instituted educational programs to prevent such actions.
Police arrested five individuals, including three escaped rightist terrorists, suspected of having perpetrated the Christmas Eve 1996 bombing in the western Cape town of Worcester that resulted in four deaths. Their cases have not yet been tried.
No charges have been filed to date in the case of the 1994 killing of former Dutch Reformed Church Moderator Johan Heyns; this situation is unlikely to change. During the bail hearing of an unrelated case in October, information came to light that Mr. Terence Psarrakis, the late business partner of brothel owner Johan Badenhorst, hired an assassin to kill Professor Johan Heyns. The investigation into the new allegations is continuing. At this point, it appears that the killing may not have been politically motivated.
The TRC's investigative unit continued to pursue a number of cases of alleged political or extrajudicial killings committed in previous years that have been brought to its attention through TRC hearings. Testimony was heard during amnesty or special events hearings on a number of these high-profile killings, including the 1993 assassination of South African Communist Party (SACP) leader Chris Hani, the 1977 torture and murder of Black Consciousness leader Steve Biko, and the 1989 killing of 14-year-old activist Stompie Seipei. By year's end, no findings had been made by the TRC in these cases.
In August three of the four men arrested for the 1981 murder of Durban attorney Griffiths Mxenge, including the leader of the attack, Dirk Coetzee, were granted amnesty by the TRC. The fourth, former security policeman Joe Mamasela, became a witness for the State and expects to receive immunity from prosecution.
The amnesty application of retired SAP Colonel Eugene de Kock has not yet been adjudicated. De Kock was found guilty on 89 charges, including6 counts of murder, and sentenced in October 1996 to 2 life sentences plus an additional 212 years' imprisonment.
There were no new reports of politically motivated disappearances caused by government authorities or agents. Starting in April 1996, the TRC heard public testimony regarding numerous politically motivated disappearances between 1960 and 1993. Investigations into a number of these disappearances were subsequently begun by the TRC's investigative unit, as well as by the relevant provincial attorney general in some cases. As a result, a number of victims, mostly ex-liberation movement soldiers, had been located and their bodies exhumed by year's end.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution's Bill of Rights provides for the right not to be tortured, to be free from all forms of violence from either public or private sources, and the right not to be treated or punished in a cruel, inhuman, or degrading way. However, police tortured and otherwise abused suspects and detainees including beatings, suffocation with rubber tubing, electric shock, and rape. Broad efforts to reform police practices have substantially reduced such activities, and the ICD (see Section 1.a.) investigates reports of police misconduct and corruption. Also, NGO's conducted several human rights education programs for the SAPS.
The SAPS has continued to undergo sweeping, positive changes, including the institution of reforms designed to create partnerships between local police forces and the communities they serve. Resignations and retirements of senior police officials have permitted the infusion of new personnel at senior levels, from both inside and outside the SAPS; these appointments have also served to further affirmative action within the SAPS. President Mandela appointed South African Breweries head Meyer Kahn as the first civilian head of the SAPS, effective on August 1, to address serious management problems that have inhibited transformation of the SAPS.
Former police captain Jeffrey Benzien testified before the Truth Commission that he, as a member of a SAPS unit, had tortured detained antiapartheid activists. However, former senior government officials denied in testimony before the TRC that the Government had authorized or condoned the use of torture in any of its police units.
Prison conditions generally meet minimum international standards; however, overcrowding remains a serious problem. The Government permits independent monitoring of prison conditions, including visits by human rights organizations.
The year saw the commissioning in Pretoria of the first of several planned "C-MAX" prisons. The C-MAX prison is designed to hold South Africa's most dangerous criminals. Human rights groups have raised serious concerns regarding C-MAX, including the Government's criteria for transferring prisoners from other prisons to C-MAX and the restrictive, solitary conditions of the prison itself.
d. Arbitrary Arrest, Detention, or Exile
The Bill of Rights prohibits detention without trial. It also provides that every detained person has the right to be informed promptly of the reasons for detention; to be informed promptly of the right to remain silent and the consequences of not remaining silent; to be charged within 48 hours of arrest; to be detained in conditions of human dignity; to consult with legal counsel at every stage of the legal process; to communicate with relatives, medical practitioners, and religious counselors; and to be released with or without bail, unless the interests of justice require otherwise.
Courts and police generally acted in good faith to respect these rights, although there was a growing problem with bringing detainees to trial. According to the HRC, prisoners wait on average for 6 months to be tried in the regional courts and 6 months to 1 year in the high courts; however, in extreme cases detention can extend to up to 2 years. This problem is due in large measure to the overburdened judiciary, which has more cases than it can handle efficiently, and insufficient staff and resources. New laws were passed which mandated minimum sentences and the refusal of bail in most cases for certain serious offenses. Some human rights groups expressed concern with parts of the new laws, saying that they would harm judicial independence and limit civil liberties.
There were no reports of forced exile.
e. Denial of Fair Public Trial
The Constitution provides for an independent and impartial judiciary subject only to the Constitution and the law, and the Government respects this provision in practice.
Under the Constitution, the Constitutional Court is the highest court for interpreting and deciding constitutional issues, while the Supreme Court of Appeal is the highest court for interpreting and deciding nonconstitutional matters. Generally, cases are initially heard in magistrates courts and high courts.
Judges try criminal cases. The jury system was abolished in 1969. The presiding judge or magistrate determines guilt or innocence.
The Constitution's Bill of Rights provides for due process, including the right to a fair, public trial within a reasonable time of being charged and the right to appeal to a higher court. It also gives detainees the right to state-funded legal counsel when "substantial injustice would otherwise result." In practice, the law functions as intended. A general lack of information on the part of the accused regarding their rights to legal representation and the Government's inability to pay the cost of those rights (in a March report, Justice Minister Omar expressed concern over 35,6000 unpaid lawyers accounts), are continuing problems.
The Government and legal bodies have acted to redress historic racial and gender imbalances in the judiciary and the bar. The ranks of judges, magistrates, senior counsels, and attorneys are now more reflective of society, although they still fall far short of a representative composition.
There were no reports of political prisoners.
f. Arbitrary Interference With Privacy, Family, Home, or Correspondence
The Constitution prohibits such practices, government authorities generally respect these prohibitions, and violations are subject to effective legal sanction.
The Constitutional Land Court and the Commission on Restitution of Land Rights were established by the "Redistribution of Land Rights Act" of November 1994. The Court's mission is to settle cases previously vetted and evaluated by the Commission. Claims can only be filed for land dispossessions following promulgation of the Natives Land Act of 1913. The various forms of compensation offered to claimants are the return of the original land, deed to another piece of land, financial remuneration, or preferential access to government housing. A deadline of December 1998 was set for receiving claims. There is no deadline for completion of the claim settlements, and the pace at which cases are moving is particularly slow. Out of a total of 18,000 cases submitted by the end of the year, only 13 have been formally settled. A provision passed by Parliament in late 1997 was aimed at speeding up the process of allowing out-of-court settlements negotiated with the Ministry of Land Affairs.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedoms of speech and of the press, and the Government respects these rights in practice. Several apartheid-era laws that remain in force pose a potential threat to the media.
The media offer a broad range of news, opinion and analysis, and criticize both the Government and the opposition. Coverage of news and expression of opinion is vigorous, although some journalists believe that self-censorship is a problem. While the majority of professional broadcast media outlets are still state owned, their editorial independence appears genuine and the Government continued steps to end its monopoly over the electronic media.
In 1997 a black-owned investment consortium acquired control of the country's leading black-oriented newspaper and of a major, traditionally white-oriented publishing business, thereby making major inroads into the historic monopoly of white South Africans over both print and electronic media. Black South Africans are also gaining access to the media through community radio and in upper-level management positions at the South African Broadcasting Corporation (SABC).
The SABC controls all free broadcast television and the majority of major radio outlets. The SABC was once seen as the Government's voice, but it is now in the midst of a historic reorganization and change of direction. Although it is still state owned, the SABC maintains its editorial independence from the Government. SABC news programming offered balanced coverage of the Government and the leading opposition parties.
Although slowed by financial scandal, the Independent Broadcast Authority (IBA) continued the incremental process of disassembling the Government's historic monopoly over electronic media. During the year, the IBA began to grant licenses to private commercial radio broadcasters, several of which were on the air by midyear. The commercial stations join the approximately 70 nonprofit, community stations that were licensed and began broadcasting in 1995 and 1996. Although some parties (notably potential commercial broadcasters) have complained about the slow progress, the IBA's work has begun to bring real competition to the country's airwaves for the first time. Still pending, and behind schedule, are IBA actions to license private commercial television stations.
Several laws remained in effect that permit the Government to restrict the publication of information about the police, the national defense forces, prisons, and mental institutions. Another law remains in force that could be used to compel reporters to reveal their sources. While these laws were not often employed, they were still perceived by journalists as a threat to freedom of the press. In July the Denel Corporation (a parastatal arms manufacturer) invoked an apartheid-era law in an unsuccessful attempt to stop the media from publishing the name of a potential client state. Journalists report that police officers often threaten to invoke apartheid-era laws in order to restrict coverage of crime scenes and investigations.
The South African Board of Censors reviews and passes judgment on written and graphic materials published in or imported into South Africa. The Board of Censors has the power to edit or ban books, magazines, movies, and videos, and regularly exercises that power, although with restraint. A government task force, created to recommend means by which the Government could improve its ability to communicate through the media, suggested that the Government reorganize its national communication service. The task force's report was greeted with relief by some in the media who feared a more sinister government desire to exercise greater control over the press.
There are no official restrictions on academic freedom.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for these rights, and the Government respects them in practice.
c. Freedom of Religion
The constitution provides for freedom of religion, and the Government respects this right in practice.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government respects them in practice.
The Government is a party to the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. In 1996 the Government signed a Memorandum of Understanding with the United Nations High Commissioner for Refugees (UNHCR) on standardization of regional refugee policies, which is designed to shift more responsibility for handling refugee flows onto first-asylum countries in the region.
The Government cooperates with the UNHCR and other humanitarian organizations in assisting refugees. The Government provides first asylum, granting applicants the right to work and study. Over 17,000 asylum seekers were registered by the Government in 1997. Approximately 30 percent of applicants received refugee status, which confers work and study privileges, in 1997. About 70 percent of the thousands of illegal immigrants deported during the year came from Mozambique. Despite numerous procedural safeguards, energetic efforts to combat a mounting illegal immigration problem occasionally resulted in wrongful deportations.
Parliament passed an Amnesty Bill in 1996 permitting certain illegal aliens who have lived in South Africa for 5 years or more to become legal residents. By the November 1996 deadline, about 200,000 individuals had applied for amnesty. Government amnesty statistics indicate an approval rate of approximately 50 percent. Separate amnesty programs were instituted for mine workers and Mozambican refugees, benefiting about 350,000 people.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens exercised the right to change their government in 1994 elections that observers deemed to be substantially free and fair. The new Constitution went into effect on February 3. Under its terms, the country retains a bicameral Parliament, an executive state presidency and an independent judiciary, including a constitutional court.
The current 400-member National Assembly was retained under the new Constitution, although the number of Members of Parliament may be reduced to 350 from 400 in the future. A new National Council of Provinces (NCOP), consisting of six permanent and four rotating delegates from each of the nine provinces, replaced the former Senate as the second chamber of Parliament. The NCOP, created to give a greater voice to provincial interests, must approve legislation that involves shared national/provincial competencies according to a schedule in the Constitution. An 18-member Council of Traditional Leaders, which the Constitution accords an advisory role in matters of traditional law and authority, was inaugurated on April 18.
Two parties, the ANC and the IFP, continued to share executive power following the National Party's pullout from the Government of National Unity (GNU) and provincial executives in June 1996. This arrangement is expected to continue until elections in 1999, because the new Constitution does not provide for power sharing in the executive. President Nelson Mandela continued in office as Executive Head of State in 1997, with Thabo Mbeki as the sole Executive Deputy President. The ANC continued to fill 24 of the 27 cabinet positions.
Elections for local councilors, including those in metropolitan councils, town councils and rural councils, were completed in June. New framework legislation for local government was introduced in the 1997 parliamentary session.
There are no legal impediments to women's participation in government. Over one-fourth of the National Assembly members are women, while in the NCOP, 8 of the 54 permanent delegates are women. Women continued to fill approximately one-quarter of committee chair slots, as well as the Speaker and Deputy Speaker positions in the National Assembly. Women hold 4 of 27 ministerial positions, as well as 8 of 14 deputy ministerial slots.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A number of human rights groups operate without government restriction, investigating and publishing their findings on human rights cases. Government officials are generally cooperative and responsive to their views. Many organizations now participate in governmental bodies seeking to gather public input and to fashion policies related to human rights.
Under its 1995 enabling legislation, the TRC is empowered to look into apartheid-era gross human rights abuses committed between 1960 and 1993; to grant amnesty to perpetrators of a broad range of politically-motivated crimes, and to recommend compensation for victims of human rights abuses. The TRC continued to operate freely throughout its second year. The TRC was scheduled to submit its final report by March 1998. However, due to the volume of work, an extension was approved authorizing the TRC to continue operations through April 30, 1998, and to submit its report to President Mandela by July 31, 1998. The TRC's Amnesty Committee was authorized to continue its work through June 30, 1998. Extensions were also approved for the period for which amnesty could be granted (through May 10, 1994) and for the period during which amnesty applications could be submitted (through September 30, 1997). More than 7,000 applications had been received by that date.
In addition to the continuation of human rights hearings, the TRC heard testimony in 1997 from political parties, the legal and medical professions, the media, religious organizations, and others about their respective roles during the apartheid era. In September the TRC served subpoenas on 20 individuals, including former South Africa defense force and police service officials and military commanders of both the PAC and ANC, to testify about the roles of armed forces and the State Security Council. A number of these officials testified voluntarily.
In hearings before the Commission, both senior former government and liberation movement representatives conceded that human rights abuses had been committed by individuals acting on their own, but they denied that abuses had been authorized at the highest levels. A number of former government officials, notably former cabinet members Pik Botha, Roelf Meyer, and Leon Wessels, acknowledged that senior officials should have done more to be aware of and curb these abuses.
Former state president P.W. Botha failed to respond to two TRC subpoenas to appear before the Commission, stating that TRC concerns would be addressed in his written submission.
A number of parties complained of political bias by the Commission. The IFP formally withdrew its cooperation from the Commission in midyear although individual IFP members did submit statements to the TRC. In September the National Party settled out-of-court a dispute over allegedly biased comments made by TRC officials following the submission of testimony by former state president, F.W. de Klerk. Despite these incidents, TRC officials continued to stress that the Commission's mandate was to investigate human rights abuses committed by all parties, and that all parties are bound by the legislation's amnesty provisions.
To date, amnesty has been granted to a range of applicants, including former members of the ANC and PAC armed wings, to former security force officials, as well as to members of conservative rightwing groups, including the Afrikaner Weerstandbeweging (AWB). More than 1,500 applications for amnesty had been turned down by midyear, including both ANC and former security force members, the majority of these because the act in question was determined not to have had a political objective.
Many of the more high-profile amnesty cases, including the murders of SACP leader Chris Hani and U.S. student Amy Biehl and the bombings of Khotso house and COSATU house, had not been adjudicated by year's end. Both the NP and the Democratic Party challenged the decision in November by the TRC's Amnesty Committee to grant amnesty to 37 former liberation movement members, many of whom are currently senior government officials. At year's end, the TRC was reviewing legal counsel on whether or not to request judicial review of the Amnesty Committee's decision in that regard.
The TRC also announced a reparations policy for victims of human rights abuses and submitted proposals to the Cabinet. Details of implementation and funding were still under consideration by year's end.
The government-created Human Rights Commission is tasked with promoting the observance of fundamental human rights at all levels of government and throughout the general population. The Commission also has the power to conduct investigations, issue subpoenas, and hear testimony under oath. While commissioners were named in late 1995, the Commission's powers were not formally determined until May 1996. Its operations have been hampered by red tape, budgetary concerns, the absence of civil liberties legislation, several high-level staff resignations, and concerns about the Commission's broad interpretation of its mandate.
The Office of the Public Protector functioned throughout the year. Its role is to investigate abuse and mismanagement by the Government. The Office faces severe resource constraints, as the number of complaints continues to increase. In its highest profile case, the public protectorate examined the leak of matriculation examinations in 1996. These examinations are given during the final year of secondary education as a prerequisite for university admittance. The Office prepared a follow-up report on the irregular funding of the AIDS-education play "Sarafina II." In 1996 the Government had indicated that it would accept the recommendations of the inquiry, some of which were critical of government action.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution prohibits discrimination on grounds of race, sex, religion, disability, ethnic or social origin, color, age, culture, language, sex, pregnancy, or marital status. Legal recourse is available to those who believe they have been discriminated against, but entrenched attitudes and practices, as well as limited resources, limit the practical effect of these protections.
There is a high rate of violence against women. Newspapers report that every 6 days a woman is killed by her husband or boyfriend . According to a 1996 study conducted by the NGO People Opposing Women Abuse, the figures for reported rape have risen consistently each year, from 32,000 cases in 1994 to nearly 37,000 in 1995. According to government statistics, 50,481 rapes were reported in 1996 (the last year for which figures are available), resulting in 4,100 convictions. Police sources believe that a majority of rapes are unreported.
The Prevention of Family Violence Act of 1993 defines marital rape as a criminal offense, and it allows women to obtain injunctions against their abusive husbands and partners in a simpler, cheaper, and more effective manner than under previous legislation. However, the implementation process is inadequate as the police are generally unwilling to enforce this act. As a consequence, a limited number of women pressed complaints under the law, despite government and NGO efforts to increase public awareness of it.
Given the high incidence of violence against women, the Government pledged in 1995 to establish centers for battered women. By mid-year a few government grants to NGO's to open shelters had been authorized; however, other NGO-sponsored shelters were facing closure or cutbacks due to lack of donor funding. The SAPS created new police units in 1996 dealing specifically with domestic violence, child protection, and sexual violence, which are intended in part to increase victims' confidence in the police, resulting in more victims coming forward to report such crimes. In July the TRC conducted a special hearing on abuses suffered by women under apartheid.
Discrimination against women remains a serious problem despite legal and constitutional advances and government attention. For example, the Constitution provides for "customary law" to be enforced "when applicable," subject to constitutional provisions. Under some of these laws, women were prevented from owning land and inheriting property. The new Interim Protection of Informal Land Rights Act protects persons who have insecure and informal rights and interests in land; many women are in this category. Some steps were taken to achieve greater economic advancement for women, such as establishing an investment fund.
The Office on the Status of Women, which was established in 1996 and is located in the Deputy President's Office, is intended to coordinate gender desks in each department. These desks are charged with reviewing department policy and developing strategies to ensure integration of gender concerns in policy and planning. They also undertake investigations of reported gender discrimination.
The 1996 Commission on Gender Equality Act established a government body to promote gender equality and to advise and make recommendations to Parliament on any legislation affecting women. The legislation gives the Commission authority to investigate allegations of gender discrimination, including the power of "search and seizure." In early 1997, after consultation with Parliament, the President named the 12 members of the Commission. Operations began in March, despite a first-year budget that failed even to cover commissioners' salaries. In August the Commission issued its first report stating that the structures established to protect women's rights were "fragile" and lacked resources.
The Women's National Coalition (formed in 1994) includes more than 90 women's groups from labor, political parties, religious groups, trade unions, cultural and social interest groups, and business and professional bodies.
Polygyny continues to be practiced by several ethnic groups. However, generally only the first marriage is registered under civil law; subsequent marriages are conducted under traditional rites. Exacting a bride price ("lobola") is also a traditional practice of some ethnic groups.
The Constitution stipulates that children have the right "to security, education, basic nutrition, and basic health and social services." The Government remains firm in its commitment to provide these services, and has made some progress toward developing the mechanisms for delivering them. However, the demand for such services far outstrips the resources currently available.
The Schools Bill, passed by Parliament in 1996, aims to achieve greater educational opportunities for black children. It mandates compulsory education from ages 7 to 15, a single syllabus, and more equitable funding. The Government is deploying teachers from predominantly white to predominantly black schools in order to reduce student/teacher ratios in disadvantaged schools, and to redistribute funding from relatively rich to relatively poor school districts. Student populations on university campuses are becoming more representative of the country's racial profile, with previously all-white universities reaching out to recruit students from black and colored townships.
Social programs known as "Presidential Initiatives," which were included in the former Reconstruction and Development Program, continue to receive government support. These initiatives offer free health care to pregnant women and to children under 6 years of age, and provide nutritious meals for primary school children.
Violence against children remains widespread. Reported cases increased 65 percent between 1993 and 1995.
The increase in reported cases can be attributed to the creation of special units to deal with these crimes, growing emphasis on children's rights, and increased attention to the problem by the public and the media. However, a lack of coordinated and comprehensive strategies to deal with such crimes continues to impede the delivery of needed services to young victims. The murder in July of a 7-year-old girl, allegedly at the hands of the man who was out on bail for raping her, shocked the nation and highlighted the need for greater government attention to violence against children. The South African Law Commission reported in August that few abusers are convicted and that laws dealing with child abuse are largely "ineffective."
Child prostitution is on the rise, primarily in Cape Town, Durban, and Johannesburg. An increase in the number of children living on the streets has contributed to the growing number of child prostitutes. The child sex industry has become increasingly organized, with children either being forced into prostitution or exploited by their parents to earn money for the family.
Female genital mutilation, which is widely condemned by international health experts as damaging to both physical and psychological health, is traditionally practiced in some remote areas, although it is not thought to be widespread. Traditional circumcision of teenage boys results in the hospitalization, mutilation, or even death of several youths each year.
The law permits detention of 14-to-18-year-old juveniles awaiting trial for serious crimes such as rape and murder. The number of such juveniles in detention increased from 2,013 in 1995 to 3,962 in April. In August 1996, Correctional Services Minister Sipo Mzimela initiated a national debate on the incarceration of juveniles by claiming that 62 percent of the 398 juveniles awaiting trial in top security jails--some as young as 12 years--should not be there because they were being tried on relatively minor charges. South African law states that any child under the age of 14 must be released within 24 hours into the custody of a parent or guardian when possible. In prior years, this law caused great strains in provincial shelters or resulted in children running away from pretrial care, usually back to the streets and the drugs and crime. In 1997 the Government built the first of at least five planned "places of safety." These special shelters protect children as they await trial and ensure that they do not run away before their day in court.
People With Disabilities
The Constitution prohibits discrimination on the basis of disability. Society continues to promote an increasingly modern concept of people with disabilities as a minority whose civil rights must be protected. The Government attempts to ensure that all government-funded projects take account of the needs of disabled citizens. However, in practice, government and private sector discrimination in employment of the disabled still exists. According to the Affirmative Action Monitor, fewer than two-thirds of companies target the disabled as part of their affirmative action programs. The law mandates access to buildings for people with disabilities, but such regulations have rarely been enforced and until recently, public awareness of them was virtually nonexistent. The National Environmental Accessibility program, an NGO comprising disabled consumers as well as service providers, has established a presence in all nine provinces in order to lobby for compliance with the regulations and to sue offending property owners when necessary.
The Constitution provides for the recognition of "the institution, status, and role of traditional leadership," and requires the courts to "apply customary law when that is applicable, subject to the Constitution and any legislation that specifically deals with customary law."
The Constitution further permits legislation for the establishment of provincial Houses of Traditional Leaders and a National Council of Traditional Leaders, to deal with matters relating to traditional leadership, the role of traditional leaders, indigenous and customary law, and the customs of communities observing a system of customary law. By midyear, six provinces had established Houses of Traditional Leaders. Under the terms of the Constitution and new implementing legislation, the National Council of Traditional Leaders was inaugurated on April 18. The Council is to advise the Government on matters related to traditional authorities and customary law.
The Constitution and Bill of Rights prohibit discrimination on the basis of race, ethnic or social origin, and culture. The Government has begun reorganizing and redesigning the educational, housing, and health care systems to benefit all racial and ethnic groups in society more equally. The public and private sectors continue to pursue affirmative action programs, which are permitted under the terms of the Constitution. The Government has instituted an effective affirmative action program, and has strongly encouraged private firms to do so. According to a 1996 Department of Labor survey, 82 percent of private sector firms have instituted affirmative action programs.
According to Affirmative Action Monitor, affirmative action policies have had little impact on the top echelons in business. Based on the consultants' survey in 1996, one-third of the organizations with no programs did not intend to implement one. Twelve percent of the companies surveyed said that they had experienced a drop in standards or deterioration in quality of work due to affirmative action. However, the country's black majority increasingly is making inroads into the previously all-white entrepreneurial sector through pooled investments and acquisitions.
Section 6 Worker Rights
a. The Right of Association
The Constitution provides for freedom of association and the right to strike and these rights are given statutory effect in the Labor Relations Act (LRA) which went into effect in November 1996. All workers in the private sector are entitled to join a union. Most workers in the public sector, with the exception of members of the South African National Defense Force, the National Intelligence Agency, and the South African Secret Service, are also entitled to join a union. No employee can be fired or discriminated against because of membership in or advocacy of a trade union. Union membership has continued to decline steadily in the last few years as a result of job layoffs and a fairly stagnant job creation rate. According to official estimates, there are 248 registered trade unions and between 30 and 40 unregistered trade unions, with a total approximate membership of 2.9 million persons, about 30 percent of the formally employed, economically active population. The unemployment rate by comparison is estimated at between 30 and 35 percent.
The largest trade union federation, the Congress of South African Trade Unions (COSATU), is formally aligned with the African National Congress (ANC) and the South African Communist party (SACP). Over 60 former COSATU members serve in national and provincial legislatures and administrations, and scores more entered local government. Its closest rival, the Federation of Unions of South Africa (FEDUSA), is an apolitical, multiracial federation that was formed in 1997 by merging several smaller worker organizations. A relatively minor labor federation, the National Council of Trade Unions (NACTU), while officially independent of any political grouping, has close ties to the Pan Africanist Congress (PAC) and the Azanian Peoples Organization (AZAPO).
The LRA seeks to create an industrial relations regime that is stable and recognizes that basic worker rights need to be protected. The act protects workers against unfair dismissal, recognizes their right to form trade unions, enshrines the right to strike, and establishes a simple set of procedures that protect striking workers from the threat of dismissal. Essentially, for a strike to proceed, all that is required is that a dispute be referred for conciliation. If conciliation fails to resolve the dispute, then a trade union is entitled to advise an employer of an intent to strike. Such a strike is not liable to criminal or civil action. Organized labor also has the right to engage in "socioeconomic protest," whereby workers can demonstrate, without fear of losing their jobs, in furtherance of broader social issues. The LRA also allows employers to hire replacement labor for striking employees, but only after giving 7 days' notice to the striking trade union. Employers have the right to lock out workers if certain conditions are met.
The LRA applies to public sector as well as private sector workers. Public sector employees, with the exception of essential services and the three components of the security services, are also provided with the right to strike. While this right was first asserted in the Public Sector Labor Relations Act of 1993, the LRA simplifies and rationalizes collective bargaining in the public sector and the resort to industrial action.
The Government does not restrict union affiliation with regional or international labor organizations.
b. The Right to Organize and Bargain Collectively
The law defines and protects the rights to organize and bargain collectively. The Government does not interfere with union organizing and generally has not interfered in the collective bargaining process. The LRA statutorily entrenches "organizational rights," such as trade union access to worksites, deductions for trade union subscriptions, and leave for trade union officials, which strengthen the ability of trade unions to organize workers.
Union participation as an equal partner with business and government in the National Economic Development and Labor Council (NEDLAC), a tripartite negotiating forum, ensures a direct voice for labor in the formulation of economic, social, and labor policy.
The LRA allows for the establishment of workplace forums that are intended to promote broad-based consultation between management and labor over issues such as work organization, corporate downsizing, and changes in production processes. The forums, in order to receive statutory protection, can be established by trade unions in businesses with more than 100 employees only. While to date, trade unions in less than a handful of factories have established workplace forums, the intent of the law is to build wide support within the trade union movement and business for such cooperative workplace relationships.
To further reduce the adversarial nature of labor relations, the LRA also created a Commission for Conciliation, Mediation, and Arbitration (CCMA). Since its inception in November 1996, the CCMA has successfully resolved many disputes referred to it and remains critical to the emergence of a less confrontational business climate. The CCMA is also gradually beginning to play an interventionist role by getting involved in disputes before they deteriorate into a full-fledged strike or lockout. A Labor Court and a Labor Appeals Court are other important creations of the LRA. The labor court has jurisdiction to resolve disputes that the CCMA is unable to mediate to the satisfaction of both parties. Notwithstanding the existence of the CCMA and specialist courts for labor disputes, the thrust of industrial relations is to minimize the need for judicial intervention in labor relations leaving it to the contending parties themselves to resolve disputes whenever possible.
There are no export processing zones.
c. Prohibition of Forced or Compulsory Labor
Forced labor of either adults or children is illegal under the Constitution and is not practiced.
d. Status of Child Labor Practices and Minimum Age for Employment
Employment of minors under the age of 15 is prohibited by law. However, the law gives discretionary powers to the Minister of Welfare to exempt certain types of work to allow individual employers or groups of employers to hire children under certain conditions (for example, on weekends and holidays when they are not in school). This is common practice in the agricultural and informal sector. Child labor also is used in the informal economy.
The fact that children between 15 and 18 years of age are not protected by child labor laws has caused some debate within the Government. Labor Director General Sipho Pityana stated that there were about 200,000 children working in South Africa in 1997, some as young as 5-years-old. This figure did not include unpaid domestic work or children working in the informal sector. Child labor figures for the informal sector are nearly impossible to quantify, since the Government has yet to identify the size of the informal sector's contribution to employment and the economy in general. The Government states a continuing commitment to abolishing child labor through new legislation and improving the enforcement of current child labor laws.
e. Acceptable Conditions of Work
There is no legally mandated national minimum wage. Instead, unionized workers in the formal sector of the economy set wage rates on an industry-by-industry basis via annual negotiations with employer organizations. In those sectors where workers are not sufficiently organized to engage in the collective bargaining process, the Wage Act gives the Minister of Labor the authority to set wages. The Wage Act, however, does not apply to farm laborers or domestic workers.
Occupational health and safety issues are a top priority of trade unions, especially in the mining and heavy manufacturing industries. Although attention to these issues has increased dramatically, including passage in 1993 of the Occupational Health and Safety Act, the country's industrial and mining processes are dangerous and sometimes deadly. Government attempts to reduce mining fatalities culminated in the 1996 Mine Health and Safety Act, which went into effect in January. The new act provides for the right of an employee to remove himself from work deemed dangerous to health and/or safety. Moreover, it establishes a tripartite Mine Health and Safety Council, and an Inspectorate of Mine Health and Safety tasked with enforcing the act and monitoring compliance with its provisions. The act specifically makes it an offense for a company to discriminate against an employee who asserts a right granted by the act (for example, to leave a hazardous work site) and requires mine owners to file annual reports that provide statistics on health and safety incidents for each mine being worked.
The Parliament passed the basic conditions of employment bill in November. This bill standardizes time and one-half pay for overtime, establishes a shorter 45 hour workweek, and longer maternity leave for women (4 months instead of 3). There was substantial debate over this bill, until labor and business interests agreed on a compromise bill that should go into effect in 1998 after ratification by the provincial governments.
[end of document]
Return to 1997 Human Rights Practices report home page.
Return to DOSFAN home page.
This is an official U.S. Government source for information on the WWW. Inclusion of non-U.S. Government links does not imply endorsement of contents.